Citation Nr: 21030784 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-34 665 DATE: May 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT Although the schedular criteria for a TDIU have been met, the Veteran's service-connected disabilities are not shown to result in an inability to obtain or maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2006 to March 2011. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. The case was previously remanded by the Board in November 2018. In its remand, the Board found that the Veteran's TDIU claim had been raised as part and parcel of the underlying increased-rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This matter was last before the Board in July 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Duty to Assist (TDIU) In November 2018 and July 2020, the Board found additional information was required before the Veteran's TDIU claim could be decided. Based on the Board's remand, the Veteran was to be provided a new VA Form 21-8940. The July 2020 remand also provided the Veteran the opportunity to submit any additional evidence, such as work history, education, and vocational training. The Veteran was contacted by the RO in August 2019 and August 2020. There is nothing in the record indicating the Veteran was not aware of VA's attempts to contact him for the requested information. The address and phone number for the Veteran appear to be current. The record does not reflect any returned or undelivered mail. In the months since, the Veteran has not submitted any correspondence explaining his failure to respond to attempts to obtain the requested information, nor has he provided any good cause for this failure. The Veteran was sent a SSOC in October 2020 regarding the issue. The October 2020 SSOC, which described his failure to respond to requests for additional information, was mailed to his last known address of record and was not returned as undeliverable. To date, he has not reported he did not receive notice of the requested information, provided good cause as to why he did not respond to requests for the information, or otherwise requested that he be given another chance to provide the information. Neither the Veteran nor his representative have raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Moreover, given the presumption of regularity of the mailing of the VA notice and the fact that the Veteran has not provided a reason for his failure to provide the requested information, the Board is satisfied that the Veteran received notice of the request. The Board will consider the claim without the benefit that this information may have provided. Entitlement to a TDIU The Veteran contends that his service-connected disabilities prevent him from being able to secure or follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Since December 18, 2013, the Veteran is service connected for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), rated as 50 percent disabling; right knee osteoarthritis, rated as 20 percent disabling; thoracolumbar strain, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; right ankle fracture, rated as 10 percent disabling; right lower extremity radiculopathy, rated as 10 percent disabling; left lower extremity radiculopathy, rated as 10 percent disabling; left knee patellofemoral pain syndrome, rated as noncompensable; and chronic tension headaches, rated as noncompensable; for a combined disability rating of 80 percent. Since December 18, 2013, the Veteran has met the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). For reasons outlined below, the Board finds a TDIU is not warranted from December 18, 2013, because the preponderance of the evidence does not support that the Veteran was unable to maintain substantially gainful employment due solely to service-connected disabilities. A VA treatment record from December 2013, reflects that the Veteran had been brought in for inpatient psychiatric treatment by his parents after he quit work and school earlier that month. See July 2016 CAPRI. The Veteran underwent a VA PTSD examination in May 2014. Symptoms of the Veteran's PTSD were noted to be anxiety, suspiciousness, and chronic sleep impairment. Occupationally, it was noted that the Veteran had started working as an electrician apprentice and was also attending a technical school. He had 1.5 more years until he received his license. The examiner who performed the examination opined that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiencies and intermittent periods of inability to perform occupational tasks. In June 2014, the Veteran underwent a VA TBI examination. The examiner found a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The Veteran was found to have normal judgment. Social interaction was routinely appropriate. The Veteran was always oriented to person, time, place, and situation. Motor activity and visual spatial orientation were normal. There were subjective symptoms that did not interfere with work; instrumental activities of daily living; or work, family or other close relationships. There were no neurobehavioral effects. The Veteran was able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. In June 2014, the Veteran underwent a VA knee and lower leg examination. The Veteran reported constant, daily pain, which was rated as being 3 to 6 out of 10. The Veteran experienced flare-ups when walking up stairs. Range of motion testing revealed flexion to 140 degrees or greater and extension to 0 degrees. There was no additional limitation after repetitive use testing. Functional impairment was noted to be partial impairment in activities such as jumping, running, climbing, walking long distances, and prolonged standing. In June 2014, the Veteran underwent a VA ankle examination. The Veteran reported pain 3 to 4 times a day, which was rated as being 3 to 6 out of 10. The Veteran experienced flare-ups in which his ankle would lock up. Range of motion testing revealed plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater. Additional testing was normal. Functional impairment was noted to be partial impairment in activities such as jumping, running, climbing, walking long distances, and prolonged standing. In June 2014, the Veteran underwent a VA back examination. The Veteran reported constant, daily pain, which was rated as being 3 to 8 out of 10. During a flare-up, the Veteran experienced severe pain and limited range of motion. Range of motion testing revealed flexion to 90 degrees or greater, extension to 30 degrees or greater, bilateral lateral flexion to 30 degrees or greater, and bilateral lateral rotation to 30 degrees or greater. There was no additional limitation after repetitive use testing. Radiculopathy of the bilateral lower extremities was noted, resulting in mild paresthesias and/or dysesthesias and numbness. Functional impairment was noted to be partial impairment in activities such as heavy lifting, pushing, pulling, and carrying. June 2015 VA treatment records reflect that the Veteran had been discharged after a psychiatric stay. It was noted that the Veteran had recently quit his job because he found it difficult to work with others. Prior to quitting his job, the Veteran had worked as a detailer at a carpool. The Veteran was noted to have a history of unstable employment. See July 2016 CAPRI. In July 2016, the Veteran submitted a private DBQ. Symptoms of the Veteran's PTSD were noted to be depressed mood, anxiety, suspiciousness, impairment of short and long term memory, flatten affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Occupationally, it was noted that the Veteran had dropped out of electrician training due to psychological difficulties. The examiner found that if the Veteran was working, he would miss 3 or more days of work per month due to mental problems, would need to leave early from his workplace 3 or more days per month, would be unable to stay focused for at least 7 hours out of 8 hours of a workday more than 3 days per month, and would respond angrily to the pressures of a job. The examiner who performed the examination opined that the Veteran's PTSD resulted in occupational and social in most areas. The examiner found that the Veteran PTSD was severely limiting and prevented any sustained gainful employment. He found that the Veteran had been unable to work since 2014 and prior to that was only capable of intermittent low wage work since his discharge from the military in 2011. November 2016 VA treatment records reflect that the Veteran was working for a painting company that his father used to work for in the past. See August 2020 CAPRI. March 2017 VA treatment records reflect that the Veteran was unemployed. See August 2020 CAPRI. August 2017 VA treatment records reflect that the Veteran had chronic back pain since his military service. The Veteran was working as a painter and was constantly moving. He denied numbness, tingling, weakness, or problems with his bowel or bladder. See August 2020 CAPRI. September 2017 VA treatment records reflect that the Veteran was active in his job as a painter. See August 2020 CAPRI. July 2018 VA treatment records reflect that the Veteran had stated that he was employed as a construction worker. See August 2020 CAPRI. August 2018 VA treatment records reflect that the Veteran endorsed being a very hard worker, wanting to be more productive, but that when he felt bad, he could not hold his job. He was noted to have been having a lot of difficulty focusing on his painting job. See August 2020 CAPRI. In October 2019, the Veteran underwent a VA TBI examination. The examiner found no residual effects of the Veteran's TBI. The Veteran reported that he was managing a painting business and stated he was very successful. He denied any memory or cognitive problems that affect his ability to be employed. In November 2019 and April 2020, the Veteran failed to report to his VA knee, ankle, and back examinations. As noted above, in November 2018 and July 2020, the Board found additional information was required before the Veteran's TDIU claim could be decided. Based on the Board's remand, the Veteran was to be provided a VA form 21-8940. The Veteran was also provided the opportunity to submit any additional evidence, such as work history, education, and vocational training. The Veteran did not provide the requested information. In rendering a closer examination of the evidence, the Board finds the evidence does not a TDIU. While the evidence shows the Veteran has some physical and mental limitations, and has been unemployed at times, his service-connected disabilities would not preclude employment. The Board acknowledges that the Veteran's service-connected disabilities are productive of many difficulties, as indicated by the total disability rating assigned throughout the appellate period. However, while the Veteran undoubtedly suffers significant impairment from his disabilities, the competent evidence of record preponderates against a finding that he is unemployable due to his service-connected disabilities. While the record indicates that the Veteran has at times been unemployed, it does not establish he has been employed for a significant amount of time. While the July 2016 private examiner found that found that the Veteran had been unable to work since 2014 and prior to that was only capable of intermittent low wage work since his discharge from the military in 2011, the May 2014 VA psychiatric examination report reflected that the Veteran had started working as an electrician apprentice and was also attending a technical school. Additionally, November 2016 VA treatment records reflect that the Veteran was working for a painting company, August 2017 VA treatment records reflect that the Veteran was working as a painter, July 2018 VA treatment records reflect that the Veteran had stated that he was employed as a construction worker. See August 2020 CAPRI. The records reflect a period of unemployment in March 2017, but the Veteran was employed once again in August 2017. See August 2020 CAPRI. Furthermore, in October 2019, the Veteran reported that he was managing a painting business and stated he was very successful. In arriving to its conclusion, the Board considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. While the evidence does show that the Veteran had partial difficulties with jumping, running, climbing, walking long distances, prolonged standing, pushing, and lifting heavy objects it also reflects that the Veteran was able to find consistent employment throughout the appellate period. In spite of his physical difficulties, the Veteran was able to obtain employment as a construction worker and painter, a physically demanding job in which the Veteran himself stated he was successful in. Furthermore, the Veteran's psychical impairments do not reflect that the Veteran was limited from obtaining sedentary employment. The Board also considered the mental ability-factors noted in Ray, to include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. The evidence overwhelmingly indicates, however, that while the Veteran's PTSD caused him psychological difficulties, he was able to continue working full time. Once again, periods of unemployment were followed by periods of employment. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran has not alleged, nor has he provided evidence that his employment during the appellate period was marginal. The Board notes that the Veteran's full work history, education, wage history, and vocational training are not of record. This information would have been helpful in helping the Board determine the Veteran's true employment and earning history. As noted above, an attempt was made to obtain such information, but the Veteran did not provide it. Furthermore, the Veteran failed to report for multiple examinations. Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). In summary, the Veteran has vocational impairment due to his service-connected disabilities, as evidenced by his total rating of 80 percent throughout the appellate period. However, the evidence does not establish that his service-connected disabilities precludes gainful employment. Based on the foregoing, and the totality of the evidence, the Board finds that the weight of evidence does not show the requirements for TDIU have been met. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.